Theory Of Social Evolution by Sir Henry Maine( Philosophical School Of Jurisprudence)

Sir Henry James Sumner Maine was a famous jurist of Modernized Historical School of Jurisprudence i.e. Philosophical School of Jurisprudence. . He was appointed as the Regius Professor of Civil Law in 1847. He was known as the founder of the English Historical School of Law by recognizing Savigny thoughts to England. He also helped in making laws in India from 1863 to 1869 since he served as a member of the council of the governor-general of India. Maine wrote many important books about law and history, like Ancient Law, Village Communities, Early History of Institutions, and Dissertation of Early Law and Custom. In 1869, he started teaching at the University of Oxford. People in America thought highly of him, and he became a member of a famous group called the American Philosophical Society. He died in 1888. Maine's work was very important and still inspires people who study law today.

Stages of development of law-

According to Maine there are four stages of development of law:

1. Law made by the ruler under divine inspiration-At first, people believed that the laws made by their rulers came from a divine power. This was true for many laws, including Muslim law.
   
   
2. Customary law- At this stage, the orders given by the King became a normal way of doing things, and people started following them without thinking too much about it. This made them into customary law.
   
   
3. Knowledge of law in the hands of priests- During this stage, as time passed, a small group of people or minority, often of a religious nature, became the ones who knew and enforced the customary laws. This happened because the original rulers who made the laws became weaker, and the people started relying more on the customs and traditions that had been established. So this small group took on the responsibility of keeping these laws alive and make sure that the people followed them.
   
   
4. Codification- During this stage, laws began to be written down in the form of a code, such as the Twelve Tables in Rome. This made the laws easier to understand and follow because they were consolidated into a single document, rather than being passed down as customs or traditions.

Static and Progressive Societies-

According to sir henry main, societies are of two types:

1. Static Societies: The societies that stop at the fourth stage of law, which is when they write down their laws in a code. They don't move on to any other stages and think that this is the last stage of their legal system.
   
   
2. Progressive Societies: The societies that continues to develop their legal systems beyond the fourth stage of development of law, they are called progressive societies. They develop thier laws in three ways:

1. Legal fiction is a way of changing the law to fit the needs of society without actually changing the words of the law. 
   
2. Equity refers to a set of principles that are believed to be more important than the actual laws themselves. It is used to make the law less strict or harsh, and more fair and just.
3. Legislation is the final and most straight forward way of creating laws. It involves officially making new laws and putting them into effect for everyone to follow.

Status To Contact Theory

"THE MOVEMENT OF PROGRESSIVE SOCIETIES HAS HITHERTO BEEN A MOVEMENT  FROM STATUS TO CONTRACT."

Meaning of Status and Contract- 

 In a static society, an individual's social status was based on their family background, specifically their father's family. They could not change their social class based on their own abilities, and they had to follow the customs and traditions of that class. For example, if Mr. X was born into a lower class, he would not have any opportunities to improve his status. On the other hand, if he was born into a higher class, he could have better opportunities. Where as, in a progressive society, individuals are seen as independent and capable of making their own decisions. They are free to make agreements and connect with whomever they choose. Their rights and obligations are based on their individual agreements and negotiations with others. This approach gives value to the idea of "Bentham's doctrine," which emphasizes individual freedom and choice.

Maine's Theory-

According to Maine's theory of social evolution, societies change from being status-based to contract-based over the time. In a status-based society, an individual's social status is determined by their family background, and social mobility is limited. However, in a contract-based society, individuals have more freedom to make their own decisions and enter into contracts with others. This evolution from status to contract is driven by changes in law and social attitudes. As societies become more complex, there is a need for more flexible and adaptable systems of social organization, which contract-based societies provide.

Criticism

• Neglected the power of dynamics: Maine's theory neglects the role of power in legal evolution. It was argue that legal systems are often shaped by the interests of powerful groups within society, and are not simply the product of evolution.

• Individualism centric: Some scholars argue that Maine's theory overemphasizes the role of individualism in legal evolution and fails recognise other factors in shaping legal systems.

• Oversimplification of legal evolution: Critics argue that legal development is more complex and influenced by various social, economic, and cultural factors. For instance, some legal systems today have implemented social welfare policies that protect vulnerable groups, indicating a possible shift back towards a "status".

Conclusion

Sir Henry Maine was a renowned jurist whose theory of social evolution, from status-based to contract-based societies, has both inspired and faced criticism. While some scholars have criticized Maine's neglect of power dynamics, his emphasis on individualism, and his oversimplification of legal evolution, his work remains a significant contribution to the study of law. Maine's legacy continues to inspire contemporary legal scholars and practitioners to think critically about the evolution of legal systems and the role of law in shaping societies.

References 

Henry James Sumner Maine - Wikipedia

Sir Henry Maine | British jurist, historian, and anthropologist | Britannica

Historical School of Jurisprudence - Indian Law Portal

A Critical Study on the Contributions of Sir Henry Maine - PHDessay.com

B.N. Mani Tripathi- Jurisprudence The Legal Theory

Command Theory of Law : John Austin

John Austin

Austin, a renowned English legal scholar, was born on 3 March 1790 in England. He served in the army during the Napoleonic Wars for five years before turning his attention to the study of law. Jeremy Bentham, a prominent legal philosopher, was Austin's mentor, and his teachings significantly influenced Austin's work. In 1826, he was appointed Professor of Jurisprudence at the newly-established University College London, where he became famous for creating the analytical school of jurisprudence. Despite being Bentham's student, he is often referred to as the 'father of the analytical school' because his book was published before Bentham's. Later, he was appointed as the chairperson of jurisprudence at London University, earning him the title of 'father of English jurisprudence'. He traveled to Germany to study Roman law after that. Austin's major works include The Province of Jurisprudence Determined, Lectures on Jurisprudence, and Plea to the Constitution.

Command Theory of Law

Austin's definition of law is that it is 'a formal expression or command from a political superior or sovereign to its subjects, backed by the sanction of force'. In other words, law is a set of rules created by a governing body that has the authority to enforce those rules through the use of penalties or punishments.

Essentials 

• Positive law:

According to Austin, jurisprudence should be focused ‘solely on positive law,’ which refers to the laws that are enacted and enforced by a sovereign or political superior. He believed that law is ‘what it is’, and it should be studied and understood on that basis, rather than on the basis of ‘what it ought to be’. Due to this his theory is also known as Positivism theory.

• Command:

According to Austin's theory of law, the definition of law is based on the idea of Command given by the State or the Sovereign. The emphasis on command in this theory makes it imperative, as it is based on the idea of a superior authority giving orders to its inferiors to do something or refrain from doing something, and in case of non-compliance or infringement, there must be consequences or punishments.

• Sanction:

In Austin's view, the sanctions associated with a particular law are the evil or harm consequences that follow from disobedience or non-compliance of the command . The fear of these sanctions is what keeps people in line with the law. sanctions must be severe enough to deter people from disobeying the law. He argued that sanctions are the essential element of law, as they make the command effective.

• Sovereign:

According to Austin, the sovereign is the ultimate source of authority in the legal system, and has the power to create, enforce, and interpret laws. The sovereign's authority is absolute, and there is no higher authority that can overrule their decisions. I.e., law is based on the idea of a centralized, top-down system of authority, in which the sovereign's commands are the basis for all legal obligations.

Criticism

Austin's theory of law, also known as the "command theory," has received criticism on several fronts. Some of these criticisms are as follows:

• Ignored morals and ethics: Austin emphasizes that law is a set of commands issued by the sovereign that are backed by some sanctions. However, this approach ignores the fact that laws are often influenced by moral and ethical considerations. For example, many laws prohibit actions that are considered immoral or unethical, such as murder or theft.

• Ignored customs: Another criticism of Austin's theory is that it does not consider the role of customs in shaping the law. Many legal rules and principles are derived from longstanding customs and traditions, which are not necessarily commands issued by a sovereign. For example, dowry.

• Ignored judiciary role: Austin also ignores the role of the judiciary in interpreting and applying the law. Judges often make legal decisions based on their interpretation of the law, which may not always align with the commands issued by the sovereign.

• Ignored international law: Austin's theory is limited to the domestic legal system and does not account for the role of international law in shaping legal norms and principles.

• Various legislation that does not command to people but confers rights like fundamental rights: Austin's theory also fails to address legislation that confers rights on individuals rather than commanding them to take certain actions. For example, fundamental rights, such as the right to equality or right to freedom etc., are not necessarily commands that individuals must follow but are rights that they possess.

• Ignored democracy and followed rule of law: Austin's theory places an emphasis on the rule of law over democratic principles. This approach assumes that the sovereign has the authority to issue commands that must be obeyed, regardless of whether they align with the will of the people. However, in democratic societies, the will of the people is a crucial factor in shaping legal norms and principles.

Conclusion

John Austin was an influential legal scholar who is known as the father of the analytical school of jurisprudence. His command theory of law emphasizes that law is a set of commands issued by a sovereign, backed by the sanction. The theory focuses solely on positive law and ignores moral and ethical considerations, customs, the role of the judiciary, and international law. Despite its limitations, Austin's theory has contributed to the development of legal philosophy, and his ideas continued to be studied and debated by legal scholars in present time. The criticisms of his theory have led to the emergence of alternative theories.

References 

John Austin (Stanford Encyclopedia of Philosophy)

Imperative Theory by John Austin - Indian Law Portal

John Austin (legal philosopher) - Wikipedia

Imperative Theory of Law by John Austin - iPleaders

B.N. MANI TRIPATHI- JURISPRUDENCE THE LEGAL THEORY

Introduction To Schools Of Jurisprudence

Jurisprudence is the systematic and scientific study of law, which seeks to provide a deep understanding of its sources, nature, purpose, definition, and application. As a field of study, jurisprudence is concerned with analyzing and evaluating legal concepts, principles, and systems in order to enhance our understanding of the law and its role in society.

Schools of jurisprudence/ School of thoughts

Over the years, five schools of jurisprudence have emerged, each with its own unique perspective on the nature of law and its application. These schools of thought have contributed significantly to the development of legal theory and have provided important insights into how the law should be interpreted and applied in different contexts. These schools are as follows:

1. ANALYTICAL SCHOOL
2. HISTORICAL SCHOOL
3. PHILOSOPHICAL SCHOOL
4. SOCIOLOGICAL SCHOOL
5. REALIST SCHOOL

Analytical school

During the 19th century, the analytical school of jurisprudence gained prominence as a dominant force in legal theory, ultimately supplanting the natural law school and relegating it to a secondary position. Analytical jurists believe that the most important aspect of law is its relation to the state, and they view law as a command of the sovereign.

This school is also known as the imperative or positive school. According to this school, law is viewed as a command of the sovereign. This idea reflected the imperative school of thought. The positive school, on the other hand, emphasizes on the analysis of positive law, which means law as it exists, rather than law as it ought to be.

This school is led by two main jurists - John Austin and Jeremy Bentham. Interestingly, John Austin, who is referred to as the father of analytical jurisprudence, was a student of Bentham.

The analytical school has also produced other prominent legal scholars such as Kelsen, Hart, and Salmond. Through their work, these jurists have contributed significantly to our understanding of the law and its relationship to the state. The analytical school's emphasis on positive law and the role of the state in shaping legal systems continues to be an important area of study in contemporary legal theory.

Historical school

The Historical School is one of the major schools of jurisprudence. The fundamental ideology of this school is that law is not created but rather discovered and recognized. The main jurists of this school are Savigny, who is often referred to as the father of the Historical School, and Puchta. Other prominent jurists of this school include Montesquieu (founder), Hugo, and Burk.

The Historical School rejected the idea that law is based on abstract reasoning or moral principles. Instead, it emphasized on the importance of historical, cultural, and social factors in shaping the law. This school of thought views the law as an expression of the collective consciousness of a society, and it emphasizes on the need to understand the historical and cultural context in which the law develops.

Historical legal advisors sought to distance themselves from moral philosophy and imaginative thinking in law. They rejected the idea that judges or law specialists should play an active role in shaping the law, preferring instead to see the law as something that develops organically over time.

Philosophical school

The Philosophical School, also known as the Moral, Natural, Divine, or Metaphysical School, is another significant school of jurisprudence. This school emphasizes that law must not only be derived from divine sources or natural principles, but also from reason. In other words, the law must be fair, just, and reasonable. This school of thought has its roots in the modern concept of the Historical School of jurisprudence. Hugo Grotius, a Dutch jurist, is referred to as the father of the Philosophical School. Other prominent jurists of this school include Hegel and Maine.

The Philosophical School views the law as an embodiment of moral principles and values, and it emphasizes on the need for the law to be grounded in a sense of justice and morality. This school of thought asserts that the law should promote the common good and ensure that individuals are treated with dignity and respect.

Sociological school

The Sociological School of jurisprudence is one of the most influential schools of thought and it was adopted by all. This school believes that law and society have a reciprocal relationship, with each influencing the other. In other words, the law is viewed as an instrument of social progress, helping to shape and improve society.

The Sociological School has its roots in both the Historical and Philosophical Schools of jurisprudence. Due to revolts and political developments during the 19th and 20th centuries, there was a need to establish a balance in society for the betterment and welfare of its citizens. This led to the development of the Sociological School, which emphasized the importance of understanding the social and economic context in which the law operates.

Auguste Comte is often considered the father of the Sociological School, and other prominent jurists of this school include Duguit, Inhering, Ehrlich, Pound, and Spencer.

Realist school

Realist School of jurisprudence emphasizes on the importance of understanding the practical implications of the law, rather than focusing solely on abstract legal concepts. According to this school of thought, the law should be based on sanctions and punishments, and believed that the law must be the orders passed by judges, and that these orders must be followed, otherwise it would be considered contempt of court and subject to punishment.

The Realist School is divided into two groups: the American and the Swedish schools. The American Realist School includes prominent legal scholars such as Gray and Holmes (considered the father of this school), Frank, and Llewellyn. These scholars believed that law should be based on empirical evidence and the practical consequences of legal decisions, rather than abstract legal principles.

The Swedish Realist School, on the other hand, includes scholars such as Allen, Olivecrona, Ross, and Hägerström. They focused on the role of language and communication in legal reasoning and decision-making, arguing that legal concepts are socially constructed and therefore can change over time. The Realist School of jurisprudence challenged traditional legal theories and emphasized the importance of understanding the practical implications of legal decisions. 

Conclusion

Jurisprudence is the systematic and scientific study of law. The five schools of jurisprudence that have emerged over time each provide unique perspectives on the nature of law and its application. The Analytical School emphasizes on the relationship between law and the state, viewing law as a command of the sovereign. The Historical School emphasizes on the importance of historical, cultural, and social factors in shaping the law. The Philosophical School asserts that the law must be grounded in a sense of justice and morality. The Sociological School emphasizes on the reciprocal relationship between law and society, with each influencing the other. Finally, the Realist School emphasizes on the importance of understanding the practical implications of the law, rather than focusing solely on abstract legal concepts. The development of these schools of thought has contributed significantly to the development of legal theory, enhancing our understanding of the law and its role in society.

References

AB LEGALS: JURISPRUDENCE

Lec 3-Jurisprudence(3rdSem) by Neelam Kumari.pdf (patnalawcollege.ac.in)

Meaning, Scope and Nature of Jurisprudence - Indian Law Portal

Schools of Jurisprudence - An Overview | Law column

Schools of Jurisprudence along with Eminent Thinkers- iPleaders

Legal_Studies_Book_v8_XI.pdf

B.N. MANI TRIPATHI- JURISPRUDENCE THE LEGAL THEORY

JUDICIAL PROCESS

 

According to P.N. Bhagwati, “the judge mixes lifeblood into the dry skeleton given by the legislature and makes a living being fitting and satisfactory to address the needs of society.” In India, a democratic country, the judiciary plays a vital role in molding and preserving the rights of the people. It affirms the actions of the legislature and is one of the three pillars of democracy in India, along with the legislature and the executive. The judiciary plays a crucial role in interpreting the law and ensuring that justice is served. The judicial process refers to the set of procedures that judges follow in court to deliver fair and impartial justice to the people.

Meaning :

According to Collins dictionary, the word judicial means relating to the legal system and to judgments made in a court of law. The word process refers to a series of actions that are carried out in order to achieve a particular result. Therefore, the judicial process is the set of interrelated procedures adopted by judges in a court to ensure fair and justified delivery of justice. Everything done by judges to attain justice is considered part of the judicial process. For instance, judges have interpreted Article 21 in various ways through landmark cases, starting from AK Gopalan to Puttaswamy, to protect and preserve the fundamental rights of individuals.

Judicial process –

The judicial process encompasses a wide range of procedures adopted by judges in a court of law to deliver justice fairly and impartially. Some examples of these procedures include:-

• Independence of judiciary-

An independent judiciary implies that the executive and legislature should not interfere in the work of the judiciary. The judiciary is expected to be free from all the influences and interests of the government and the ruling party and should not act on its behalf. The judges, in an independent judiciary, should have the freedom to exercise the judicial powers conferred upon them without any influence, pressure or fear. The impartial judges play the most vital role to ensure the independence of the judiciary and act as a foundation of a fair and impartial system of courts.

• Appointment of judges –

Article 124 of the Indian Constitution states that the Supreme Court shall consist of a Chief Justice of India (CJI) . The President of India, in consultation with the CJI and other judges(collegium), has the power to appoint judges to the Supreme Court. The appointment of judges is subject to certain qualifications, including that they must be citizens of India, have been a judge of a High Court or two or more such courts in succession for at least five years, or have been an advocate of a High Court or two or more such courts in succession for at least ten years. The process for appointment of judges has been a subject of controversy and debate , with some calling for greater transparency and accountability in the process. There have been proposals for a National Judicial Appointments Commission (NJAC) to replace the existing system, but the Supreme Court has struck down such proposals as unconstitutional.

• Article 141 of the Indian Constitution pertains to the binding nature of judicial precedent -

The article states that the law declared by the Supreme Court of India shall be binding on all courts within the territory of India. This means that the decisions of the Supreme Court are considered to be the final and authoritative interpretation of the law, and must be followed by all lower courts in India.

This principle of binding precedent is a cornerstone of the Indian legal system, and helps ensure consistency and predictability in the application of the law. however, that the doctrine of stare decisis, or the principle of following precedent, is not an absolute rule in certain circumstances.

• Interpretation-

The main role of judiciary is to interpret the words of legislature to get the true essence of the text used in the statute with the help of various rules to interpretation like literal golden harmonious etc.

The term ‘other authorities’ in Article 12 has nowhere been defined. the judiciary has given several judgements as per the facts and circumstances of different cases. In the University of Madras v. Shanta Bai, the Madras High Court evolved the principle of ‘ejusdem generis’ i.e. of the like nature. It means that only those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions. Further, it cannot include persons, natural or juristic, for example, Unaided universities.

In Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that ‘other authorities’ would include all authorities created by the constitution or statute on whom powers are conferred by law. Such statutory authority need not be engaged in performing government or sovereign functions. The court emphasized that it is immaterial that the power conferred on the body is of a commercial nature or not.

• Judicial activism-

Judicial activism refers to when judiciary gets diverted from its daily chores for the protection and betterment of society. Judicial activism refers to the tendency of judges to take an active role in shaping public policy or interpreting the law, beyond the limits of traditional legal interpretation. It involves judges using their power to intervene in matters that are traditionally within the jurisdiction of the executive and legislative branches of government.

One example of judicial activism is the case of Hussainara Khatoon v. State of Bihar. In this case, the Supreme Court of India took a proactive role in addressing the issue of delay in the trial of undertrial prisoners. The case was filed on behalf of Hussainara Khatoon, who was one of thousands of undertrial prisoners languishing in jail without a trial.

 

• Judicial review-

It is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

Conclusion:

 The judicial process is crucial for the effective functioning of democracy in India. It ensures that justice is delivered impartially and upholds the fundamental rights of citizens. The independence of the judiciary and the appointment of judges are critical for ensuring that the judiciary remains free from external pressures and influences. Judicial activism plays an important role in addressing social issues and promoting the rights of citizens. Overall, the judicial process is an essential component of India’s democratic fabric, and its effectiveness is critical to the success of the country.

 

 Refrences:

https://www.legalserviceindia.com/legal/article-5491-nature-of-judicial-process.html

https://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/judicial-process

 https://en.m.wikipedia.org/wiki/Legal_process

https://www.collinsdictionary.com/dictionary/english/judicial-process

https://indiankanoon.org/

 

 

RES SUB -JUDICE

Res sub-judice is a term that has been derived from two Latin words - res, meaning "a matter" or "a thing," and sub judice, meaning "under judgment" or "under consideration by a court." It is a legal concept that refers to a situation where a matter is pending before a court, and as a result, the same matter cannot be taken before another court until the pending case is resolved.

Suppose three individuals (including you) have inherited a property that is shared between them. However, a dispute arises regarding the ownership of the property, and you decide to file a lawsuit to claim your share of interest. Meanwhile, one of the other co-inheritors also files a similar lawsuit in a different court. This can create confusion as to which court's order or decree should be followed, and can result in a waste of time and resources.

To overcome this situation, the concept of "res sub judice" was introduced. This concept means that when a matter is already under consideration by a court, it cannot be re-litigated in another court. In other words, if two or more cases are pending in different courts regarding the same matter, the court that first takes up the case and begins proceedings will have exclusive jurisdiction over the matter. The other courts will not have the power to hear the case and will have to stay their proceedings until the first court makes its decision. This helps to avoid contradictory judgments and ensures that there is no unnecessary duplication of effort in the legal system.

SECTION 10 OF CODE OF CIVIL PROCEDURE,1908:

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 1[India] have jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by the Central Government, and having like jurisdiction, or before 4[the Supreme Court].

---

Explanation.--The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action

ESSENTIALS OF SECTION 10 

Section 10 of the Indian Civil Procedure Code specifies the legal principle of "res sub-judice," which means that a matter pending before a court cannot be re-litigated in another court. The section outlines the following essential requirements:

Two or more suits: There must be two or more suits, i.e., a previous suit and a subsequent suit.

Same matter in issue: The matter in issue in the subsequent suit must be directly or substantially the same as that of the previous suit.

Same parties: The subsequent suit must be filed with the same parties as in the previous suit, or with parties who are in privity with them.

Previous suit is pending: The previous suit must be pending and undecided at the time of filing the subsequent suit.

Jurisdiction of the previous suit court: The court where the previous suit is pending must have jurisdiction to try the subsequent suit as well.

IS SECTION 10 APPLICABLE ON FOREIGN COURTS?

The principle of res sub-judice applies to courts within the jurisdiction of India. However, whether or not Section 10 CPC is applicable on foreign courts would depend on the specific circumstances of the case and the laws of the foreign jurisdiction.

In general, if a subsequent suit is filed in a foreign court, the foreign court may apply the principle of res sub-judice based on its own laws and rules. This may depend on various factors, such as the nature of the dispute, the parties involved, and the applicable laws.

If the matter in issue is directly or substantially the same as that of a previous suit pending before an Indian court, the foreign court may refuse to entertain the subsequent suit based on the principle of res sub-judice. This may also depend on whether the parties involved in the subsequent suit are the same as in the previous suit or if they are in privity with them.

Inherent Power and Section 10 CPC: Essentials and Effects

Inherent power of a court provides essential and permanent authority to ensure complete justice in a case.

Section 10 of CPC allows a court to stay a subsequent suit involving the same matter as a previous suit to prevent conflicting decisions.

In case Section 10 does not apply, the court can use its inherent power under Section 151 to stay a suit.

The court can also consolidate different suits between the same parties with the same matter to avoid multiple cases and delays.

Any decree passed in contravention of Section 10 is not null, and parties can waive their rights to proceed with the subsequent suit.

An order of stay under Section 10 does not take away the power of the court to pass interim orders such as attachment of property, injunctions, etc.

CONCLUSION

Res sub-judice is an essential principle in the legal system, as it helps to avoid contradictory judgments and unnecessary duplication of legal proceedings. When a court has taken up a case, it has exclusive jurisdiction over the matter, and all other courts must refrain from hearing the same matter until the pending case is resolved. This rule ensures that there is clarity and consistency in legal judgments and helps to streamline the legal process.

 REFRENCES-

India Code: Section Details

Res Sub-Judice under CPC: Nature, Scope and Objective - iPleaders

Sub judice - Wikipedia

PUBLIC INTEREST LITIGATION

Public interest litigation, commonly known as PIL, is a concept that originated in The United States of America during the 1960s and was adopted by the Indian judiciary for the betterment and upliftment of underprivileged people at large, particularly to people who cannot afford legal aid. PIL is not defined in any statue. It has been interpretated by jurists, judges, advocates etc.

EVOLUTION OF PIL IN INDIA:

·       The seeds of Public Interest Litigation (PIL) were first sown in the case of G. Vasantha Pai vs Sri S. Ramachandra Iyer,1967. In this case, it was alleged that Judge S. Ramachandra Iyer had forged his date of birth to avoid compulsory retirement at the age of 60. However, before the case could be heard, Iyer resigned from his position, and the case was dismissed. This case set an important precedent as it recognized the power of citizens to bring issues of public interest to the forefront and to hold those in power accountable.

·       Justice Krishna Iyer spoke about PIL in the 1976 Mumbai Kamgar case (Mumbai Kamgar Sabha vs M/s Abdulbhai Faizullabhai and others,1976). He noted: “Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties where the remedy is shared by a considerable number, particularly when they are weaker.”

·       The first reported case of PIL was Hussainara Khatoon & Ors vs home secretary, state of Bihar ,1979. which focused on the inhuman conditions of prisons and under-trial prisoners that led to the release of more than 40,000 under-trial prisoners.

·       In S.P. Gupta vs Union of India, also known as the "Judges' transfer case," the Supreme Court of India held that PIL is a powerful tool to ensure justice to the public and that any person or organization can approach the court for enforcement of fundamental rights.

Other landmark cases of PIL are as follows

v  Vishaka & Ors vs State of Rajasthan & Ors on 13 August, 1997

v  M.C. Mehta vs Union of India & Others on 22 September, 1987

v  Lakshmi Kant Pandey v. Union of India, 1984 AIR 469 

v  Indian Banks' Association, ... vs M/S Devkala Consultancy Service & ... on 16 April, 2004

v  Anil Yadav & Ors vs State of Bihar & Anr on 23 March, 1982

Who can file PIL and against whom?

PIL can be filed by any citizen of India or organization on behalf of the public interest-

1.     Under Art 32 of the Indian Constitution, in the Supreme Court.

2.     Under Art 226 of the Indian Constitution, in the High Court.

3.     Under sec. 133 of the Criminal Procedure Code, in the Court of Magistrate.

o   The person filing the PIL must not have a direct interest in the case.

o   PIL is filed against state defined under Article 12 of the Indian Constitution.

MATTERS ON WHICH PIL CAN BE FILED:

No petition involving individual/ personal matter shall be entertained as a PIL matter except –

1.     Bonded Labour matters.

2.     Neglected Children.

3.     Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of Labour Laws (except in individual cases).

4.     Petitions from jails complaining of harassment, for (pre-mature release) and seeking release after having completed 14 years in jail, death in jail, transfer, release on personal bond, speedy trial as a fundamental right.

5.     Petitions against police for refusing to register a case, harassment by police and death in police custody.

6.     Petitions against atrocities on women, in particular harassment of bride, bride[1]burning, rape, murder, kidnapping etc.

7.     Petitions complaining of harassment or torture of villagers by co- villagers or by police from persons belonging to Scheduled Caste and Scheduled Tribes and economically backward classes.

8.     Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters of public importance.

9.     Petitions from riot -victims.

10.   Family Pension

CASES WHICH CANNOT BE ENTERTAINED?

Cases falling under the following categories will not be entertained as Public Interest Litigation and these may be returned to the petitioners or filed in the PIL Cell, as the case may be:

1.     Landlord-Tenant matters.

2.     Service matter and those pertaining to Pension and Gratuity.

3.     Complaints against Central/ State Government Departments and Local Bodies Admission to medical and other educational institution.

4.     Petitions for early hearing of cases pending in High Courts and Subordinate Courts.

LIMITATIONS OF PIL:

§  overburdening of courts

§  frivolous PILs by parties 

§  Judicial Overreach

§  Once a matter has been declined cannot be entertained again.

CONCLUSION:

Public Interest Litigation (PIL) is a legal tool that allows any citizen or organization to file a petition on behalf of the public interest in the Indian judiciary. PIL was first recognized in the case of G. Vasantha Pai vs Sri S. Ramachandra Iyer,1967, and the first reported case of PIL was Hussainara Khatoon & Ors vs home secretary, state of Bihar,1979. PIL can be filed in the Supreme Court, High Court, or Court of Magistrate. PIL has its limitations, including overburdening of courts, frivolous petitions, the possibility of judicial overreach etc. Nevertheless, PIL has been instrumental in bringing justice to the underprivileged people of India through landmark cases.

REFRENCES:

• 1979: The first PIL petition - Frontline (thehindu.com)
• Public interest litigation in India - Wikipedia
• SUPREME COURT OF INDIA (sci.gov.in)
• Public Interest Litigation (drishtiias.com)
• Indian Kanoon - Search engine for Indian Law

 

 

Hussainara Khatoon & Ors vs home secretary, state of Bihar ,1979 AIR 1369, 1979 SCR (3) 532

Before discussing the landmark case of Hussainara Khatoon vs State of Bihar, it is important to acknowledge the contributions of Pushpa Kapila Hingorani, a pioneering lawyer and champion of women's and marginalized communities' rights in India. Hingorani is considered the "Mother of Public Interest Litigation," and her portrait now hangs in India's Supreme Court library.

Moving on to the case itself, Hussainara Khatoon vs State of Bihar was the first case of Public Interest Litigation in India, filed by Hingorani in 1979 after reading a report in the Indian Express newspaper about the plight of undertrial prisoners. The case brought attention to the inhumane conditions in which these prisoners were being kept and the fact that many of them had been incarcerated for years without a fair trial.

Facts in issues

The main question under consideration in this case was the violation of Article 21 of the Indian Constitution, which guarantees the protection of life and personal liberty, and Article 39A, which mandates that citizens, men and women equally, have the right to an adequate means of livelihood and a speedy trial.

Arguments And Judgement

The arguments presented in the case revealed that a significant number of men, women, and even children were being held behind bars, awaiting their trials for years. Many of them were charged with trivial offences, and even after imposing proper charges, the punishment would not have been for more than a few months of imprisonment. The Bihar government argued that the delay in the trials was due to the need for expert opinions, which were also delayed.

However, The Supreme Court found these arguments to be unsatisfactory and ordered the release of the 17 undertrial prisoners whose names were mentioned in Hingorani's writ petition. The judgment, delivered on 9th December 1980, held that the right to a speedy trial is an integral part of the fundamental right to life and personal liberty guaranteed by the Indian Constitution. The court noted that a large number of undertrial prisoners were languishing in jails for years without a trial, which was a violation of their fundamental rights.

The court directed all state governments to set up committees to identify undertrial prisoners who had been in jail for more than the maximum period of imprisonment for the offense they were charged with and to release them on bail if they were not being tried for a serious offense. The court also directed state governments to take steps to ensure that trials of undertrial prisoners were completed within a reasonable time, such as setting up fast-track courts and appointing more judges.

Conclusion

The judgment of the Hussainara Khatoon vs State of Bihar case was a landmark decision that highlighted the importance of the right to a speedy trial and the need for reforms in the criminal justice system to ensure that the fundamental rights of all citizens are protected. The release of 4000 undertrial prisoners was a significant step towards ensuring that justice is served fairly and expeditiously in India.

References

• Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, ... on 12 February, 1979 (indiankanoon.org)
• Article 21 in The Constitution Of India 1949 (indiankanoon.org)
• Article 39 in The Constitution Of India 1949 (indiankanoon.org)
• Public interest litigation in India - Wikipedia
• Kapila Hingorani - Wikipedia
• Hussainara Khatoon v State of Bihar - Case Analysis - Law Corner